Jason Pugatch v. Department of Correction - Legal Division (SPR 20160139)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords March 11, 2016 SPR16/139 Ms. Kristin Cole, Esq. Department of Corrections Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110 Dear Attorney Cole: I have received the petition of Jason Pugatch of Shepardgate Films appealing the February 12, 2016 response of Darren Duarte, Director of Public Affairs for the Department of Correction (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Pugatch a copy of a video recording of an incident in a Department correctional facility, written reports and statements of participants and witnesses and other documentation, written or electronic, of a July 17, 2000 incident that occurred at MCI-Cedar Junction. The Department has denied Mr. Pugatch's request pursuant to the Criminal Offender Records Information Act (CORI), G. L. c. 6, §§ 167; 172. Mr. Pugatch has appealed this most recent response from the Department. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Video Recording of Incident (July 17, 2000) Mr. Duarte informed Mr. Pugatch that the Department does not possess any video responsive to his request. The February 12letter states that the retention period for videos associated with a "use of force'' is ten (10) years. Mr. Duarte enclosed a copy ofthe Records OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Kristen Cole, Esq. SPR16/139 Page2 March 11, 2016 Conservation Board (Board) application for disposal, RCB-1, which was submitted to the Board for permission to destroy investigatory video tapes used as evidence, including Inmate surveillance Inmate block activity, Inmate yard activity and Inmate use of force extractions. (Department of Correction, Record Series No. 7). The form was submitted to the Board on October 13, 2000, and approved by the Board on November 1, 2000. While the Department was granted permission to destroy video recordings, it is doubtful that the specific video requested by Mr. Pugatch was recorded in 2000, and the Department would not have been granted permission to destroy that particular video in 2000, being as the retention period is ten (1 0) years. The video of the July 17, 2000 incident would not be eligible for destruction until 2010. Mr. Pugatch states in his February 16 letter to this office that the video of the incident was most recently used by the Parole Board in 2014, and that he was informed by the Parole Board that the video had been returned to the Department. Therefore, I find that the Department must conduct a diligent search for the video recording, or produce an approved destruction permission form for the period associated with the responsive record. Exemption (a) and Exemption (c) The Department claims that the written reports, statements, and any other documentation of the incident, including any medical information or data may be withheld pursuant to the CORI Act, G. L. c. 6, §§ 167, 172 as it operates through Exemption (a), and the first clause of Exemption (c) of the Public Records Law. However, as with the Department's previous response on December 4, 2015, the Department has failed to provide a detailed, written response concerning the particular records and how the exemptions allow the Department to withhold the records in their entirety. Under the Public Records Law, a record custodian must provide records in a redacted format where applicable, or specifically prove that the records cannot be redacted and may be withheld in their entirety. I find the Department has failed to respond to a request for public records. Accordingly, the Department is hereby ordered, within ten (10) days ofthis order, to provide Mr. Pugatch with a detailed response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the Department still maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Pugatch a written explanation, with specificity, how a particular exemption applies to each record or each portion of a record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § lO(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a

Ms. Kristen Cole, Esq. SPR16/139 Page 3 March 11, 2016 request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). To assist in responding to requests for public records, I advise the Department to review our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon requ t. Please contact my office directly at the telephone number below for further infor ti n. v cc: Mr. Jason Pugatch